Unlike an Act of Parliament, common law is not codified in a single document. It is a type of legislation derived from judge-decided earlier court judgments.
The Common Law
Another name for common law is “judge-made” or case law.
Common law is also considered to be founded on precedent since the law is implemented in light of those earlier cases.
According to standard practice, information provided in situations where it is believed that a duty of confidentiality applies cannot typically be released without the information provider’s permission.
This translates to the practice of not disclosing any patient or client information without the patient or client’s agreement, regardless of whether it is stored on paper, a computer, physically or audibly recorded, or in the professional’s memory.
The obligation remains the same, regardless of the patient’s or client’s age or mental health status, for example.
There are three situations in which it is acceptable to disclose confidential information:
1.] when the consent of the person to whom the information pertains has been obtained
2.] when divulgence is required to protect the person or others, or when it serves the general welfare
3.] where doing so is required by law, such as by a court order
Therefore, in accordance with common law, a health or social care practitioner must first obtain the approval of the patient or client before disclosing personal information about them to anyone outside the care team.
In situations when this isn’t feasible, an organization might be able to depend on disclosure being in the public interest or the individual’s paramount safeguarding interest.
It is important to make a thoughtful assessment when determining whether a disclosure is in the public interest.
Individual rights must be properly justified before being waived, and before disclosing any information, one should consult a professional or attorney.
Any disclosure decision ought to be well-documented.
Disclosures mandated by a court order ought to be directed as soon as possible to the organization’s legal counsel in order to allow for any appropriate arguments to be made before the court, such as limiting the scope of the material that is sought.
Should a disclosure be made that is not allowed by common law, the patient or client may file a lawsuit against the organization as well as the person who violated the agreement.
Considerations for records management
Maintaining the confidentiality of records is a duty that should be understood by everyone involved in the records management function.
Only the portions of the record that are necessary for them to do their duties should be accessible to employees.
Requests for access to records made by other employees ought to be recorded and checked on a regular basis.
When transferring health and social care records outside of the organization, extra caution should be exercised. Approved carriers and secure envelopes should be utilized, for example.
The Department of Health, other health and social care providers, professional associations, regulators, patients, clients, carers, and citizens participated in a significant public consultation process that produced the Confidentiality Code of Practice.
The Code provides thorough instructions on:
1.] safeguarding private data
2.] educating clients on how their personal data is used
3.] giving clients suitable options regarding the uses of their personal data
4.] the situations under which private information may be revealed or used
Following a patient’s death, disclosure
Regarding the deceased, there are no evident legal duties of confidentiality.
However, the General Medical Council and the Department of Health concur that there is an ethical duty dictating that secrecy duties endure beyond death.